In order to build authoritarianism, Russian ruling groups successfully created and/or used for their own purposes the “rules of the game,” which were designed to establish and consolidate the most favorable mechanisms of domination for them and strengthen informal ruling “winning coalitions” around the leaders of the country.
By the electoral field, we understand not only the normatively established framework for elections, but all the terms and conditions of the electoral process. When authoritarian regimes enter the stage of defense (holding power) and consolidate, the legislative rules of the game may not be enough. The real ratings of the authorities fall and opposition sentiments grow. Moreover, elections are such a catalyst for creativity, when legal ways are found for any state trick that limits the competitive environment. And this is understandable, since life is primary in relation to law, it is richer and more diverse than legal regulation. No matter how hard authoritarian or totalitarian rulers try to arrange the environment according to the principle “only what is allowed is allowed,” no one has ever succeeded in this. It was from this truth that the well-known Soviet meme “the severity of Soviet laws is compensated by the optionality of their implementation” grew. Therefore, no matter how cunning the state was, creating the most favorable legal conditions for the implementation of its electoral plans, this was always not enough, and therefore, it was necessary to invent additional ways to achieve what was planned.
For these purposes, the effect of legislative amendments was repeatedly strengthened by a whole set of extra-constitutional administrative practices, the possibility of the existence of which was often incorporated into the content of normative legal acts. As a result, the electoral system of Russia, functioning within the framework of the electoral law specially designed for unfree and unfair elections, was called the administrative-resource system. In fact, if we give them a precise definition, all Russian administrative practices in the aggregate are politically corrupt (earlier, all this was described as “dirty” election techniques1). Depending on the specific tasks, within the framework of the general goal of eliminating political competition, the specialists of Transparency International-Russia carried out their political science and legal classification,2 according to which they were identified:
a regulatory resource that involves the use of decision-making power that is directly or indirectly aimed at promoting specific political interests (for example: using antitrust regulatory powers to prevent a merger in the interests of an entrepreneur who finances an opposition party; abuse of the power of an election commission to refuse registration of an objectionable candidate, influence on the formation of the composition of election commissions at various levels, etc.). In other words, the artificial creation of unfavorable or, conversely, preferential bureaucratic conditions for interested parties involved in political competition. It can be almost anything: increased (or weakened) financial control over electoral accounts by state banks; tax audits; control (or lack of such) of the information field (media, social networks); response (or non-response) to complaints from participants in the electoral process; issuance of certificates, copies, documents, etc.—that is, everything that the state can somehow “reach” in the course of implementing redundant rules and procedures established for the electoral process;
an institutional resource involving the use of the labor of subordinates, that is, persons who are dependent on their higher-ups, to support political goals that are shared by the leadership—the involvement of civil servants in election events to collect signatures, work in the headquarters of candidates and parties, develop election documents, conduct election campaigns research, preparation and dissemination of campaign materials; use of the premises of government bodies, state and municipal enterprises and institutions to accommodate the headquarters of candidates and parties, for holding meetings with voters, holding election events, storing campaigning and other election materials (in cases where access to these resources is denied to alternative candidates and parties); use of the infrastructure of government offices and state and municipal enterprises and institutions (telephone lines, office materials and equipment, Internet access, use of computer equipment, use of specialized databases);
media (information) resource—the use of dependent media for the purpose of one-sided agitation in favor of pro-government political forces (for example: direct or indirect censorship of news about the course of the election campaign; refusal to provide equal airtime or print space; unequal distribution of information outside the airtime or print space officially allocated for campaigning);
financial resource as a kind of administrative resource, which involves the use for election purposes of dominant political forces, budgetary funds, funds of state companies and public non-budgetary funds and funds of private entrepreneurs dependent on the regulatory resource. During the period of opening and initial filling of electoral accounts of candidates and electoral associations, observers, for example, repeatedly recorded the presence in authorized banks (having the right to open and service electoral accounts) of organized groups of mostly elderly voters who made deposits in the same amount as “donations from individuals” into certain accounts, which was handed out to them as cash by the leader in the group;
force and law enforcement resource—the possibility of using law enforcement agencies endowed with powers of coercion. One of the most striking examples of such use is the events during the settlement of a court dispute on the removal of a strong candidate from the electoral race in the spring 2002 presidential elections in Ingushetia. Then, during the consideration of this dispute in the Supreme Court of the Republic, the unfinished and unnumbered case was groundlessly and illegally seized by armed people from the deliberation room of the judge and transported by plane to the Supreme Court of Russia, which literally the next day began to consider it and made the decision necessary for the authorities.3Over the past 20 years, we have all repeatedly observed the use of force in the electoral process. These can be official warnings from the prosecutor’s office, the initiation of criminal cases, the organization of investigative actions at the place of residence of candidates and at election headquarters, the seizure of office equipment, an attack on election headquarters in order to destroy signature sheets, the organization of investigative checks on obviously unfair complaints, and much more.A special form of using the power resource is non-interference in the prevention of violations of the electoral legislation, organized with the help of an institutional or coercive resource;
the judicial resource is a particularly dangerous administrative resource in a situation where the judicial system is dependent on the executive branch, which makes it possible to legalize any law enforcement, security and administrative practices of authoritarian regimes.
O. V. Mikhailova also mentions a coercive resource, which, in contrast tothe law enforcement one, is characterized by ensuring mass turnout, as well as deliberately distorting the voting results.4 We are talking about a centralized delivery of a dependent electorate to voting places (sometimes coupled with the organization of “carousels”—multiple voting of the same voters at different polling stations with their data entered into additional voter lists). There are frequent cases of organized and controlled voting by military personnel, including double voting, when a military unit has “its own” polling station, and then, at the request of the command, released military personnel also vote at “civilian” polling stations. Observers constantly face complaints about demands from leaders to send them photographs showing how the ballots are marked. There are many complaints about forced early voting and pressure from election commissions during mobile voting at home. In recent years, in connection with the organization of multi-day voting and the possibility of voting “on stumps,” the practice of voting at workplaces under the control of the administration is spreading. The introduction of DEG (remote electronic voting) immediately led to the use of a coercive resource in this direction, which, in the face of system shortcomings, may turn out to be extremely promising for the state in achieving authoritarian goals. The effective use of a coercive resource is possible only if there is no responsibility for such actions (recall how the article on the types of violations of the electoral legislation was abolished from the Law “On General Principles…”).
But still, the legislative (rule-making) resource is always singled out separately and first of all as the main and independent type of administrative resource, since it is associated with the use by the dominant political forces of their opportunities to participate in the legislative process in order to adopt laws that promote their political interests. By the legislative resource is understood the formation during the elections of a special composition of the parliament dependent on the executive branch (the political level of the administrative resource), which will legitimize the goals and objectives of the authorities at the technical level. In the democratic model of power, the term “abuse of power” is usually not applied to legislative activity. However, the practice of authoritarian regimes shows that lawmaking, carried out by artificially created legislative bodies dependent on the executive branch, is precisely such an administrative resource for the implementation of predetermined goals and objectives. Remember the epigraph to this book: “In order to be elected, one must have power, and in order to have power, one must be elected.” The legal creation of a pseudo-legal basis for political domination, obviously, should be considered as an integral part of it, and, moreover, the leading one.
The formation of the personal composition of the parliament for predetermined goals is also a form of political corruption. Violation in the form of abuse committed by officials at the political level, in any case entails “a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state.” Especially if there is an adoption of laws that impede the development of political competition.5 Because political decisions should be exclusively the result of free political competition.6
Elections are the most important institution in any state. That is why the procedure for organizing and holding elections should be determined exclusively by law as the highest form of legal regulation. And this is how the method of formalizing the rules for holding elections in the Constitution of the Russian Federation is determined (part 4 of article 81, part 2 of article 96). These rules do not imply other options for their adjustment, with the possible exception of the interpretation by the bodies of constitutional control and the precedential decisions of specially authorized courts (for example, the ECtHR, by virtue of Article 3 of Protocol No. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, enshrining the right to free and fair elections). Therefore, the main administrative resource is the legislative one. And that is why the personal composition and the degree of dependence of the parliament on the will of the main political actors is of such importance for the authorities. But as the authoritarian regime ages and the population gets tired of it, legislative ways to regulate the electoral field may not be enough to retain power. And then it is formed in some consolidated way by means of all administrative resources. In such situations, along with the law, a whole set of legal, pseudo-legal and extra-legal forms is created, aimed at achieving the goal.
Today, the following ways of creating special legal conditions for organizing and holding elections in Russia can be distinguished, which in practice become their legal expression:
direct change in legislation, replacing the constitutional foundations of the electoral process;
blocking public and legislative initiatives aimed at modernizing and improving the electoral system;
interpretation of the electoral legislation by the bodies of constitutional control to the detriment of the electoral rights of citizens;
replacing legal norms with quasi-normative acts (instructions, methodological recommendations, etc.) and making these acts mandatory;
arbitrary law enforcement based on the use of an administrative resource, not related to changes in the regulatory framework, but creating a system of business habits (customary law);
reduction of grounds and opportunities for the application of liability for violations of the electoral legislation;
changing the meaning and content of the activities of election commissions.
In the first part of this book, we analyzed in detail the dynamics of changes and the classification of amendments to the Russian electoral legislation. This dynamic indicates that the legislative resource was used to the maximum extent for authoritarian purposes. Since 2002, the Law “On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation” has been amended more than a hundred times7—1,564 amendments have been made to it, 752 amendments to the Law “On Elections of Deputies…”, and to the Law “On Political parties,” 314 amendments. In total, 2,630 amendments were made to the electoral legislation, 166 of them since May 2021.8 However, even without counting the number, one can feel the difference in legal regulation quite significantly, simply by picking up two versions of the paper version of any electoral law—a small booklet of the 90s and a thick modern volume. Very visual!
With the help of electoral rules that quickly change to meet the requirements of the next political moment, a parliament modified as necessary for the implementation of the authorities’ tasks is formed. In this case, the state abuses its rule-making powers in order to predetermine the future composition of the electoral race, although, according to the position of the Constitutional Court, one of the main requirements for electoral legislation is its stability as “a guarantee of the equality of citizens in the exercise of active and passive suffrage.”9 That is, the Russian regulation of the procedure for organizing and holding elections is extremely far from the standards of normality, just as its content in terms of ensuring the constitutional principles of democracy, political and ideological diversity, a multi-party system and equality of citizens before the law is very far from perfect.
However, the instability of the legal field and the volatility of legislation are a common feature of authoritarian systems. This is due to the fact that the bureaucracy writes laws for itself. If it competes with anyone, then only with itself. There are no external checks and balances. In a democratic state, legislation is incomparably more stable, because everyone who is at least to some extent interested in it is involved in the discussion process. It is incredibly difficult to push a new law through such a sieve. In our case, the executive branch has the opportunity to implement almost any of its ideas. Which is exactly what it does.
Along with the permanent authoritarian transformation of the legal field, the legislative resource was used to block public and legislative initiatives that arose as a natural response of society to the narrowing of the competitive political space. In parallel with the process of transformation of the electoral legislation, experts, opposition politicians, and public organizations developed various proposals aimed at improving the electoral system and holding fair and equal elections. These initiatives concerned both certain aspects of the organization of election campaigns (for example, the return of the line “against all” on the ballot) and changes in the main parameters of the system. Including the electoral formula and even the codification of the electoral law.10 However, none of these initiatives were implemented by the specially constructed parliamentary majority.
The proposal to return the line “against all” to the ballot was submitted to the State Duma three times, by a group of opposition deputies and by the legislative assemblies of two constituent entities of the Federation. And three times these legislative initiatives failed to pass even the first reading. Subsequently, the line “against all” was nevertheless returned, but in the most truncated form—only at the municipal level and at the discretion of the regional legislator.
A similar fate, as expected, befell more ambitious proposals, such as, for example, the transition to a mixed-memberproportional electoral system. When in 2013 the “wise men of the Duma” decided to return from a fully proportional system to the previously used mixed-memberparallelsystem, Deputy Dmitry Gudkov, together with experts from the Committee for Civil Initiatives, prepared a draft amendment that assumed mutual accounting of the results obtained by parties under proportional and majoritarian systems.11 With this procedure for determining the results of elections, a party that simultaneously nominated candidates on the list and in individual constituencies could not get more seats in parliament than
candidates from that party who won in single-member constituencies, or
from the percentage of votes received by the list.
That is, a mixed-member proportional system would make it possible to eliminate the possibility of a cumulative effect from the shortcomings of both electoral systems in use and would ensure a fairer representation of opposition parties in majoritarian elections.12 However, all the amendments proposed by Gudkov were rejected, because, unlike the amendments, which increase the ability of the authorities (actually not divided into branches and lined up in a vertical) to influence the course and result of the elections and reduce the opposition’s ability to take real part in them, they were a direct threat to a controlled parliament.
Several bills have been “stuck” for many years in the Duma Council, which simply does not put them to a vote. An interesting case is the one with the presidential draft “hanging” for eight years. It was introduced by Dmitry Medvedev shortly before the inauguration of Vladimir Putin, who returned to the presidency in April 2012, and by inertia passed the first reading, and then was put on hold. The draft provided for the party’s right to recall its members from election commissions with a decisive vote. The Duma did not dare to reject the president’s project, although it easily rejected the same project submitted by the “Socialist-Revolutionaries” in 2014 (while the leading committee gave different opinions on these two projects). The rest of the pending bills are mainly related to the municipal filter, on which the Administration has not yet made a decision.
Senator Vladimir Lukin proposed extending to Moscow and St. Petersburg the requirement that at least 25% of the deputies of regional parliaments be elected under a proportional system. This is not just a natural demand, it is a demand to abolish an extremely harmful norm, which, after its introduction in 2013, was immediately used by the Moscow authorities. It is in the capitals that party organizations are most developed, and therefore it is in the capitals that the proportional system is most in demand. The rejection of the proportional system in Moscow is clearly the legislators playing along with the main stakeholder of the election results—the executive branch. The draft was rejected in the first reading.13 And there are many more such examples.
Particularly indicative is the situation with the development of the draft law “Code of Elections and Referendums in the Russian Federation (Electoral Code of Russia).” On the sixth attempt (the previous ones were in 1992, 1994, 2000, 2004, and 2007), at the initiative of the Russian Foundation for Free Elections and the CEC14, in 2018, the Faculty of Law of Moscow State University named after M. V. Lomonosov officially began work on its development.15 The project envisaged the consolidation into a single act of the current federal regulation of the conduct of elections, including the president and deputies of the State Duma, the fundamentals of organizing elections at the level of subjects of the Federation and local self-government, as well as holding referendums (with the exception of a federal referendum regulated by a separate federal constitutional law). In essence, the Code was supposed to replace a number of existing electoral laws.16 And although ten years before the start of work on this project, another version of the Electoral Code was already prepared, created by the expert group of A.E. Lyubarev under the auspices of the Golos Movement17 (recognized as a foreign agent), which not only combined all the federal regulation of elections, but assumed a qualitative reworking of the main parameters of the electoral system and the abolition of a number of restrictive and prohibitive norms, the matter did not get off the ground. The code, and even two, are already ready. Time has inexorably moved to the ‘20s of the 21stcentury, and nothing has changed.
One of the legal ways to transform the electoral legislation is the interpretation of electoral laws by the Constitutional Court of Russia. And this is natural and normal, since the main goals of the Court are to protect the foundations of the constitutional order, the fundamental rights and freedoms of man and citizen, as well as to ensure the supremacy and direct effect of the Russian Constitution.18 In the context of the erosion and substitution of the constitutional foundations of the electoral process, it is the Constitutional Court that is entrusted with the task of identifying this negative transformation and counteracting it. Since the parliamentary coup of 2002, electoral disputes have been the subject of consideration by the Court about 200 times, but only 18 times the consideration ended with the adoption of a decision on the merits. No, of course, it cannot be said that the Court has not fully coped with the task assigned to it, that it has always been led by the legislator or the executive branch. Common sense and the constitutional idea were sometimes present among its decisions. For example, when it substantiated the constructive significance of protest voting for the formation of elected bodies,19 or confirmed the right of voters (and not just candidates and electoral associations) to a judicial appeal against violations at their polling stations,20 or created additional guarantees for a judicial appeal against decisions of election commissions to refuse to register a candidate,21 or when it obliged election commissions to notify candidates for deputies that their documents contain incomplete information or do not meet the requirements of the law for the execution of documents.22
At the same time, in a number of key cases, its position seems to be at least controversial, indecisive and clearly not up to the lofty constitutional purpose. Absolutely shameful, for example, is the Ruling on the refusal to accept for consideration the complaint of Vladimir Kara-Murza, Jr., who challenged the constitutionality of the provision of the Law “On Basic Guarantees…”, according to which citizens of the Russian Federation who have citizenship of a foreign state do not have the right to be elected. Contrary to the direct and clear provisions of the Constitution that every citizen of Russia has on its territory all the rights provided for by the Constitution (Part 2 of Article 6), that a Russian citizen can have foreign citizenship and that the presence of such citizenship does not detract from his rights and freedoms (Part 1 and 2 of Article 62), despite the presence in the Constitution of a closed list of restrictions on passive suffrage (Part 3 of Article 32), the Court found that the provision of the law “in the part providing for the prohibition of the election of citizens of the Russian Federation who have citizenship of a foreign state to public authorities, does not contain uncertainty and cannot be considered as violating the constitutional rights and freedoms of the applicant.” Moreover, it “established” this not by Decree, but by aRuling on the refusal to accept the complaint for consideration.23 That is, as if “everyone understands everything, but I don’t want to leave traces of the official recognition of such a norm that complies with the Constitution.”
In another judicial act, the Court, although it recognized the inadmissibility of a lifelong deprivation of electoral rights, admitted the possibility of its going beyond the terms of a criminal record.24 In fact, this decision of the Constitutional Court of the Russian Federation can safely be called the second in terms of severity of harm inflicted on the Russian electoral system, after the Ruling on the complaint of Vladimir Kara-Murza. Back in 2006, the legislator established a ban on standing for persons sentenced to imprisonment for grave and especially grave crimes and who have an unexpunged or outstanding conviction on the voting day. In 2012, this qualification was made for life and received retroactive effect: the right to be elected was deprived of the right to persons “who had ever been sentenced to imprisonment for committing grave and (or) especially grave crimes” except in cases of subsequent decriminalization of the elements of the offense were deprived of the right to be elected.
A year and a half after its adoption, this norm became the subject of a dispute in the Constitutional Court of the Russian Federation. The court recognized the indefinite ban as unconstitutional, which is certainly good. However, at the same time, the Court, firstly, considered it admissible to establish the qualification itself according to the criterion of conviction for committing a grave or especially grave crime for longer than the term of a conviction. Based on this position, the legislator subsequently replaced the life qualification with the current construction, under which the qualification is valid for 10 and 15 years after the removal of a conviction for grave and especially grave crimes, respectively.
Secondly, the Court gave an interpretation of part 6 of article 86 of the Criminal Code of the Russian Federation that the removal or cancellation of a criminal record annuls all legal consequences associated with a criminal record. Now only the consequences established by the Criminal Code itself are annulled—in other laws, the state is free, in its discretion, to establish the consequences of a criminal record, including beyond its term. For example, in the electoral legislation, this was expressed in the obligation to report information about any convictions ever held.
There is another less known, but very bad decision of the Constitutional Court, by which it approved the possibility of making changes to the main parameters of the electoral system on the eve of the elections.25
In January 2014, less than eight months before voting day (and five months before the start of the campaign), the electoral system for the elections to the Moscow City Duma was changed: instead of a mixed one (a combination of the majoritarian with relative majority and the proportional one with closed lists),a completely majoritarian electoral system was introduced. A group of State Duma deputies challenged these amendments, referring to the violation of the stability of the main components of the electoral legislation—the electoral system and the constituencies.
The Court saw no legal uncertainty in this matter. The electoral legislation prohibits the introduction (or, more precisely, the entry into force) of amendments that change the main elements of the electoral system, only for the period of an already ongoing campaign— such amendments are to come into force after the end of the campaign and be applied in the next election. This approach is contrary to the Guidelines on Elections adopted by the Venice Commission, which prohibit revision of the main parameters of the system less than a year before the elections. Despite this, the Court did not consider it possible to limit the discretion of the legislator.
In a number of cases, the Constitutional Court abstained from resolving acute electoral issues.
For example, until 2015, regular elections to the State Duma were held on the first Sunday of the month in which the constitutional term for which the previous convocation was elected expired. Since 1993 Duma elections have been held in December. This was one of two exceptions to the single voting day rule introduced in the 2000s. The second (and still remaining) is the election of the President of the Russian Federation. In 2015, the legislator amended the final provisions of the new version of the Law “On Elections of Deputies…”, establishing that the next elections should be held on the third Sunday of September 2016, that is, almost three months ahead of schedule.
Officially, the new election date was explained by the desire to bring the Duma elections to a common date with a single voting day in September, although the single voting day falls on the second, not the third, Sunday of the month. A more logical position is that such a transfer would lead to a “drying up” of voter turnout and, thereby, to an increase in the percentage of participation of the administratively dependent electorate.
The Federation Council asked the Court to interpret Articles 96 and 99 in terms of changing the constitutional terms of office of the State Duma. Despite the obvious unconstitutionality of the postponement, the Court ultimately evaded its critical assessment, declaring it admissible if several evaluation criteria were met: “For constitutionally significant purposes, in advance, does not entail deviations from the reasonable frequency of the regular elections of the State Duma and the continuity of its activities and is minimally insignificant.”26
Or this: the Law “On Basic Guarantees of Electoral Rights…” contains a list of actions that qualify as election campaigning—direct appeals, expression of preference, description of the consequences of electing or not electing a candidate, etc. Until 2003, this list was open: the last item on it was “other actions aimed at inducing or encouraging voters to vote.” At the same time, both then and now, the electoral legislation prohibits media workers from campaigning in the course of their professional activities.
The appeal to the Constitutional Court pursued the goal of obtaining a clear distinction between campaigning and information in the media. However, the resulting solution only exacerbated the confusion. The court declared the clause on “other actions” to be unconstitutional, which, however, did not make the list of “options” for campaigning closed: it still contained no less vague “activities that contribute to the creation of a positive or negative attitude of voters.”27 However, at the same time, the Court stipulated that illegal campaigning activities can only be intentional. In other words, media campaigning is only campaigning when it has a campaigning goal. And proving such a goal is a matter of evaluation and discretion.
But even when the Constitutional Court adopted something constructive on the issue of voting rights, it often resulted in nothing. For example, two government bills submitted to the Duma on the basis of decisions of the Constitutional Court have been shelved for many years and have not been put to a vote. These are a bill related to the Decree of the Constitutional Court that a member of the territorial commission may have a residence permit in another country (“Malitsky’s case”), which has been before the Duma for more than ten years, and a project implementing the Decree on the possibility of appealing the election result by a former candidate in case of obstruction by election commission officials of the nomination and registration of a candidate, introduced in 2019. But the Duma not for the first time (recall the situation with the referendum law) considers it possible to ignore the decisions of the Constitutional Court. Apparently, with its unstable position, it deserved just such an attitude.
Suchquasi-normative acts include various kinds of resolutions, methodological recommendations, explanations and instructions adopted by the Central Election Commission of Russia and the election commissions of the constituent entities of the Federation. The law really gives the Central Election Commission the right to issue binding instructions “on issues of uniform law enforcement,”28 and they actively use this. Even more than actively. Federal legislation does not recognize such authority for regional commissions, although in practice they still adopt their instructions. There are a lot of regulatory, semi-normative and recommendatory acts of election commissions. Scholarly treatises have been written about them.29
Election commissions also interpret electoral laws.30 They also publish guidelines…31
The acts of the commissions regulate in detail individual, already excessively bureaucratic electoral procedures. For example, they approve the forms of documents that are mandatory for use by candidates and parties and specify the setof documents required for nomination—all the way up to the procedure for certifying a copy of a candidate’s passport and explaining which “paper” can be used to confirm which legal fact of his biography. Despite the fact that the law omits such details, the violation of the requirements of quasi-normative acts is actually perceived by the courts as a violation of the law: since the law contains general provisions that the commission specified within its powers, then the law is subject to application in the manner established by the act of the commission, both courts and the commissions themselvesbelieve. In addition to the forms of documents, the commissions traditionally determine the procedure for the workflow of financial documents, opening and maintaining an electoral account, compiling financial statements, providing free airtime and free print space for campaigning, etc., etc.
But the CEC does this in such a way as to complicate the verification of electoral violations as much as possible. For example, in the regulation of video surveillance during elections, which has been carried out in Russia since 2012, mainly in federal campaigns, as well as in individual regional campaigns. From election to election, the number of precinct and territorial commissions equipped with cameras varies, the rules for access to broadcasts change. However, one block of questions has consistently remained defective throughout the ten years. This is a question about subsequent access to video recordings from the sites. Such access can be obtained only with the permission of the CEC or the EC of the subject of the Federation and only for a certain time interval corresponding to the alleged violation. Access to complete records that could, for example, verify voter turnout is a priori impossible. Any application for access to records may be rejected on formal grounds.
Or here is an example of a classic abuse of a rule-making resource for the purposes of arbitrary quasi-normative regulation: during 2020, several amendments were made to the electoral legislation introducing new methods of voting (remotely, in areas adjacent to your residential building, or by mail), expanding the possibilities of home and early voting, as well as allowing for multi-day voting. A feature of all these amendments is that the issues of choosing voting methods in specific elections and the rules for conducting such voting are given by law to the Central Election Commission (a kind of deliberate blanket rule). Under the conditions of such legislative freedom, the CEC independently, by its resolution, decides what kind of voting, how and in what time frame to conduct it.
For example, in 2020, the CEC allowed four options for early voting: at the polling station, at home, in areas adjacent to the residential building, and at the exit toward another population centerwhere there is no voting place. At the same time, early home voting can be held simultaneously with any other “early voting.” That is, if earlier the presence of observers at the same time both at the polling station and at the exit was necessary only on voting day, now it is required for several days.
Also, the resolution reduced the protection against fraud during“early voting." Ballot papers for each day and each voting method were to be packed in separate safe packages. If, when such a package was opened during the vote count, it contained more ballots than were issued, the ballots were not automatically invalidated (as, for example, in the case of portable boxes on a regular voting day). Then a control recount was carried out according to the lists of voters, during which the members of the commission had much more opportunities to “correct” something.
Such a seemingly simple document as a working notebook of a member of the precinct election commission deserves additional attention. It is adopted each time for each specific election and regulates in detail literally every breath at the polling station. Being essentially a reference book compiled to help members of the commission, it often literally replaces the law on the site, showing “the ultimate truth.” At the same time, it is not even formally approved by the decision of the Central Election Commission.
All this is clearly superfluous and unnecessary, a kind of legal rubbish that greatly complicates the life of candidates, turns elections into a set of stupid bureaucratic procedures that cannot be fully implemented, and deprives them of political competitive meaning. Such excessive normativity is an unconditional sign of the legal system of an authoritarian state. If we analyze almost any normative legal act in such a state, we will see only specific rules of conduct that have no real purpose and usually exist in the form of precise, non-ambiguous or dispositive application of prescriptions.32
Thus, the CEC turned from an election commission into a full-fledged Ministry for Election Affairs. It is on the basis of its quasi-normative acts that the work of all election commissions in the country is organized, the results of which are reaped by voters who have less and less confidence in their state and its representative bodies.
“Precedential” decisions of the courts of general jurisdiction also actually became one of the sources of legal regulation of the electoral process. Not being precedents in the exact meaning of this term, such decisions set a certain general trajectory of law enforcement in the face of an insufficient or ambiguous regulatory framework. In some cases, only due to the established judicial practice, it is possible to determine the degree of permissible behavior. At the same time, defects in legal regulation give the courts excessive discretion, up to and includingthe adoption of mutually contradictory decisions in similar circumstances.
So, for example, it was on the basis of court decisions that many rules for the use of intellectual property rights in election campaigns were formed. Electoral laws contain only a prohibition on violation of intellectual property law in the course of election campaigning and sanctions for such violations in the form of denial of registration, cancellation of a decision on registration, or cancellation of registration of a candidate or party list.33 The ban itself is a reference to the provisions of the fourth part of the Civil Code of the Russian Federation and does not imply any electoral specifics of intellectual property regulation. However, it arises from the very fact of litigation about copyright in the absence of claims from the right holders.
As an example, we can cite the practice of disputes over the use of social network logos in campaigning. Their use without concluding a license agreement with the copyright holders has been recognized as a violation of intellectual property law for several years,34 although the networks themselves allow the use of their logos for informational purposes–to indicate a method of communication with a person. However, in 2016 this practice was changed by the decision of the Supreme Court of the Russian Federation, unexpectedly recognizing the difference between propaganda and informational use of the logo, allowing the use of the latter without concluding a separate license agreement with the copyright holder.35
Such hemming and hawing by the courtsspeaks of the opportunism of the decisions made. The adoption by the Supreme Court of reviews of the practice of considering electoral disputes, and the systematization of practice in the decisions of the Plenum of the Court partly makes it possible to bring practice to uniformity.36 But, firstly, many significant issues have not yet been reflected in the reviews, and secondly, the development of legal regulation is by no means the task of the judicial system.
The Lev Shlosberg precedent. We specifically provide a detailed analysis of the legal situation that has arisen around the dispute over the legality of the cancellation of the registration of Lev Shlosberg as a candidate for deputy, since the court decision using double retroactive force is, of course, a precedent. Why Schlosberg? Because the recalcitrant Pskov Yabloko deputy dared to run for the federal parliament, from which all Duma “troublemakers” were expelled in advance and “to avoid problems” were forced out of the country—the father and son Gudkovs, and entrepreneurs Sergei Petrov and Ilya Ponomarev. Even by himself, without being a duma deputy, the uncompromising Schlosberg was extremely dangerous for the warm Duma swamp “without discussion.” Maybe if he didn’t dare to go to the Duma and stayedhome in Pskov, there would be no problems. However, even from Pskov, he knew how to create problems for the center. What happened?
On January 23, 2021, mass public events were held in many Russian cities in support of AlekseyNavalny and in defense of freedoms. It is unlikely that anyone could have imagined then that, in addition to thousands of detainees and dozens of criminal cases, another consequence of these actions in six months would be the removal of dozens of opposition candidates in the elections to the State Duma and regional legislative assemblies.
One of the actions on January 23 was a procession in the center of Pskov, in which more than a thousand people took part and which took place virtually without an organizer—he was detained the day before. At the end of the main event, a group of about 50 participantsended up near the city’s “Hyde Park”—a special site where public events can be held without prior approval. It was at this moment that the deputy of the Pskov Regional Assembly, Lev Shlosberg, suggested that the protesters go to the “Hyde Park,” a place where unconditional freedom of assembly is protected by law.
It was for this episode that the Pskov City Court on January 29 found Lev Shlosberg guilty of organizing an illegal public event (a “march” of several dozen people to the “Hyde Park,” where the police eventually did not let them in) under Part 2 of Article 20.2 of the Code of Administrative Offenses of the Russian Federation, a spontaneous movement of several dozen people along the path in the park for less than a hundred meters, calling Schlosberg its “actual organizer.”
A little more than six months later, this court decision became the basis for the cancellation of Schlosberg’s registration in the elections to the State Duma by the Moscow City Court. But what do elections have to do with it, you ask? At that point, absolutely nothing. However, the law in Russia can change rapidly and unpredictably. In early May, literally a month after the start of the trial to recognize Aleksey Navalny’s opposition structures as extremist, a bill was submitted to the State Duma that would deprive citizens of passive suffrage (that is, the right to be elected in elections at any level) for involvement in the activities of extremist and terrorist organizations.
The bill had many defects, the vast majority of which, however, successfully passed all stages of the legislative process in record time. The law introduced two categories of persons involved in the activities of extremist structures. The first includes the founders and heads of an organization and its structural divisions. They are recognized as “involved” automatically, without a separate court decision: a court decision that has entered into force and recognizes the organization as extremist is enough. The last detail is important; we will return to it later. Founders and leaders are deprived of the right to be elected for five years from the date of entry into force of such a court decision.
The second category of “involved” consists of members, participants and employees of the organization and other persons. To recognize them as “involved,” a separate court decision that has entered into legal force is required, establishing the legal fact of involvement. Moreover, the involvement can be expressed in almost any interaction with “extremists”: financial support (transfer of donations), approval statements (even posts and reposts on social networks), participation in events and “other actions” so beloved by the legislator, allowing to endlessly expand the circle of grounds at the discretion of government agencies.
In summary: in order to lose the right to be elected, “others involved” require not one, but two court decisions that have come into force simultaneously: on recognizing the organization as extremist and on establishing the person’s involvement in its activities, and the period of deprivation of the right is three years.
To top it off, the new law is worded in such a way that it applies retroactively, that is, to events that occurred before it was passed. We are talking about the timing of establishing involvement—when a person had to get involved in the activities of an extremist organization in order to be deprived of their rights. For “others involved” such a period is one year until the organization is recognized as extremist; for founders and leaders, three years. Translating from legalese into Russian, if an organization was recognized as extremist in June 2021, a citizen will be recognized as involved in its activities if he took part in its events in the period from June 2020 to June 2021.
It is obvious that all the January actions (the organizer of which the court recognized as the banned organizations of Aleksey Navalny) fall within the specified interval. In essence, citizens are being disenfranchised for actions that did not have such legal consequences at the time they were committed. A participant in the action in January 2021 or, for example, a donor who sent a donation in October 2020 did not know and could not know that these actions would lead to being recognized as involved in extremism. This is the retroactive force of the law, with the help of which election commissions and courts, one after another, struck candidates from the Duma elections in 2021.
But there is a limitation in the use of retroactive force, laid down by the June law itself and solemnly ignored by the election commissions and courts. The fact is that the law, which allows to deprive the passive electoral right for involvement in an extremist organization, entered into force on June 4, 2021, on the day of its publication, which means that it can only be applied to legal relations that arose after its entry into force. Again, translating from legalese into Russian, both court decisions—both on recognizing the organization as extremist, and on establishing the involvement of a person in its activities— should come into force after June 4. This in no way cancels the general unconstitutionality of restricting rights with retroactive effect, that is, for actions that at the time they were committed did not have such consequences. But even for such unconstitutional restrictions, there is a procedure for their application.
Let’s get back to the case of the deregistration of Lev Shlosberg in the elections to the State Duma. He was charged with “other involvement” in the activities of an extremist organization. According to the plaintiff, and then the courts of three instances, this is confirmed by the decision of the Pskov City Court of January 2021, the same in which Shlosberg was called the “actual organizer” of the march, without even trying to take account of what happened at the event. But this decision happened a few months before the new amendments to the electoral legislation came into force, which means that it could not be used. The same applies to other opposition candidates, whose involvement in the “extremists” was established by the January and February court decisions, by which future candidates were brought to administrative responsibility.
There is another significant detail in the case of Lev Shlosberg: on August 3, he was already registered by the district commission as a candidate for the State Duma in a single-mandate district, and on August 5, by the Central Election Commission as part of the federal list of the Yabloko party.
According to the law, the registration of a candidate that has already taken place can be canceled by the court due to his lack of passive suffrage only due to newly discovered circumstances. These are circumstances that existed at the time of registration of the candidate, but were not known to the election commission. This means that both the court decision on establishing involvement and the court decision on recognizing the organization as extremist should not only exist, but should also enter into force no later than August 3, the date of registration of Lev Shlosberg as a candidate in a single-mandate constituency.
But the Pskov decision on the procession near the Hyde Park, which the courts used as establishing involvement, is not such a decision. There is no other decision on involvement, and it is impossible to establish it otherwise than at the suit of an authorized state body (and not another candidate for deputies) according to the norms of the law. And even if you establish it regardless of the law, then it will in no way come into force on August 3; in the real world, unlike the text of the law, time does not flow backwards.
There was also no decision on recognizing the organization as extremist on August 3: the decision of the Moscow City Court on the structures of Alexei Navalny came into force only on August 4, after the registration of Lev Shlosberg.
As a result, neither of the two decisions required by law to recognize a citizen as deprived of the right to be elected by the courts exists.Like it or not, the “puzzle,” even such an unconstitutional one, cannot be solved. But, as they say, if someone wants it very much, even something worse than that used to be accepted by our courts.37
The systematic use of the administrative resource in the electoral process has led to the formation of a stable law enforcement practice that is not based on the legal framework. And not only on the legal basis, but on the law in general. This practice, in fact, has become a “business practice,” a sort of customaryrule not enshrined in law, but applied everywhere. For example, the absence of a direct reference to the right of observers and commission members with advisory votes to film at polling stations has long been interpreted as a direct ban. The situation was similar with the right of public observers to move around the polling station, the right to get acquainted with the documents of the election commission, the right to make comments, etc. The absence of a direct mention of these actions in the law was interpreted negatively, as a prohibition. The result of the violation of all the missing “prohibitions” in most cases was the removal of observers from the sites, which in itself also became a habit.
There are many such small examples. Such business practices as a creative power of the authorities in achieving the goal of limiting political competition and obtaining the desired electoral result are characteristic not only of election commissions. Many departments “frolic” in this field. Particularly creative in this incarnation is the Ministry of Justice, which is responsible for registration and control of the activities of political parties. The legalization of its illegal practices is entrusted to the judicial system, which successfully copes with the task.
So, for example, Aleksey Navalny, starting in 2012, tried to register his party and was refused nine times. Initially, he wanted to register a party called “People’s Alliance,” but political strategist Andrey Bogdanov, who is the founder of eight registered political parties, very quickly renamed one of them, the “Native Country” party, “People’s Alliance,” so that the name was taken. After Bogdanov’s People’s Alliance was registered with the Ministry of Justice, Navalny renamed his organization the Progress Party. He attempted to register this name six times, but was refused. In March 2018, the Ministry of Justice renamed as the Progress Party another party associated with Andrey Bogdanov, Civic Position. The third name of Navalny’s party was Russia of the Future. Now the Ministry of Justice needed a new creative trick.
According to a statement from the Ministry of Justice, signed by Vladimir Titov, director of the department for non-profit organizations, state registration of the Russia of the Future party was suspended for three months, since a number of provisions of the charter of the party of Aleksey Navalny contradicted the Federal Law “On Political Parties.” The Ministry of Justice has eight complaints about the text of the charter. The comments relate to accounting, and issues of interaction between the leadership of the party and its regional branches. The department also revealed errors in the numbering of paragraphs of the charter. For example, in the sixth paragraph, the Ministry of Justice requires a detailed description of “the procedure for appealing by party members of decisions and actions of its governing bodies, its regional branches and other structural divisions.” The seventh complaint generally resembles a closed loop paradox: in order to hold a general meeting of the regional branch of the party, it is necessary to gather the members of the party registered in its regional administration, which can only be created by a general meeting of the branch. The department’s last complaint concerned a violation of the numbering of the charter, although the Ministry of Justice must check the document for compliance with the law, which the violation of the numbering obviously does not contradict.
In May 2019, the Zamoskvoretsky Court of Moscow dismissed a complaint about the refusal of the Ministry of Justice to register the party. The ministry again explained that a party with that name already exists. In fact, Mr. Bogdanov (apparently at the urgent request of the Ministry of Justice) for the third time renamed one of his parties, the Party of Free Citizens, to exactly the name indicated in Navalny’s statement. It seems that the folders with documents of Bogdanov’s parties are in the Ministry of Justice on a separate special shelf labelled “On Demand” and are promptly used one after another in emergency cases. Navalny’s party has not yet been registered.38
It turns out that it seems so easy to rename an already registered party. Andrei Bogdanov managed to do this three times without problems or delays. But no, it turned out that this is not so for everyone. The Ministry of Justice treats “ours” and “them” closely and on a case-by-case basis, and, intentionally abusing its powers, in its hard work it is clearly guided by the principle of “hold tight and don’t let go.” Therefore, when the new, not very “politically reliable” co-founders Dmitry Gudkov and Ksenia Sobchak came to Andrei Nechaev’s “Civil Initiative” party, the Ministry of Justice was on the alert.
In the summer of 2019, the party held a congress and by two thirds of the votes changed its charter, introducing a second co-chairman and seriously increasing the powers of the political council; Dmitry Gudkov was elected chairman of the party by secret ballot and voted for a new name: Party of Change. This was preceded by a six-month effort to get the minutes of the regional chapter meetings in order and nominate delegates from 53 entities. The Ministry of Justice did not have a single complaint about the quorum, the choice of delegates, voting and the conduct of all procedures at the congress. The congress was completely legitimate, and its decisions were legal. It is legal to elect new members of the political council, it is legal to vote by secret ballot for the choice of the chairman of the party, it is legal to vote for changes in the charter and name. In each of these votes, the requirement for the approval by two thirds of the overall number of delegates was met.
But the Ministry of Justice refused to rename the party. For example, it had a complaint about the absence of a party program in the documents. Although the regulations of the Ministry of Justice say that in order to amend the Charter, only four documents must be submitted: an application in the form prescribed by law, a decision to amend, the Charter in a new edition, and receipts for payment of the state fee. And this happened five times. Five times the party filed documents on renaming, five times the Ministry of Justice refused it for a variety of reasons, and the same Zamoskvoretsky Court (having jurisdiction over the location of the Ministry of Justice) confirmed the legitimacy of the refusals. Such is the “customary practice.” The party has not been renamed yet.
In practice, such an expansion of the powers of state bodies testifies to an excess of the limits of state intervention in the relations of democracy, to a decrease in self-restriction of power by law and, as a result, to a violation of the principle of the legal nature of the state.39 The effect of interference, achieved through uncontrolled changes in the rules for organizing and holding elections, is greatly enhanced by the creation of a special system for restricting the protection of voting rights.
However, the discriminatory nature of law and the personalized nature of legal prescriptions is another typical specific feature of an authoritarian state. The discriminatory nature of law means the actual impossibility of formal equality for all social categories of the population, which is inherent in the law of democratic states. An authoritarian state, characterized by the power of a limited circle of people, predetermines the need to create a social support for the ruling group.40
In the first part of the book, we considered in detail the issue of the importance of having a list of electoral violations in the legislation,41 the relationship of such a list to legislation establishing liability, and the problem of implementing this liability as the main form of protection of electoral rights. We also talked about how this list appeared in the electoral legislation in 1997 and how it was removed from it in 2002. It was naturally withdrawn, since a programmed electoral result cannot be obtained without violations, and the presence of such a list greatly complicates the life of the organizers of such a result. Most of the electoral “customarypractices” that have already become commonplace, which, in fact, are nothing more than gross violations of electoral rights actively practiced in modern Russia, were reflected in this list. If it had been preserved in the current legislation, the situation with the observance of electoral rights could well have become different. But everything happened the way it happened, and, as we understand it, not by chance. Instead of a list in the law, only a general reference rule on criminal, administrative and other liability remained without a description of the grounds. But the matter was not limited to the reduction of grounds for liability. The list of subjects able to appeal electoral violations has also undergone changes. The Central Election Commission was also deprived of the right to apply to the Supreme Court with a statement in defense of the rights of a significant number of citizens.
A special issue is appealing against violations committed by candidates and electoral associations. They can be appealed either by the election commission organizing the elections, or by an opposing candidate or party. Parties not participating in the campaign, other public associations, non-profit organizations and, finally, citizens are deprived of the right to a voice in this matter. For example, they cannot defend their right to receive truthful information about candidates, appeal violations of election campaigning rules, or, say, independently oppose the registration of a candidate with a hidden criminal record. The only thing that in the end, and even then by a special decision of the Constitutional Court, citizens were allowed to do was appeal against violations recorded at the polling station where they themselves voted. From the point of view of the legislator, this limits the legally protected interests and rights of ordinary voters. In all other cases, only a special entity can be an applicant. Thus, the elections have been turned into a kind of “get-together of insiders,” in which even the state is almost completely free of the obligation to control the observance of the principle of free and fair elections.
Initially, the status of election commissions in post-Soviet Russia was interpreted by scholars as public-state or public-municipal. Indeed, the procedure for their formation and activities differs significantly from state bodies. By definition, this is a special independent joint body created to prepare and conduct elections for deputies of representative bodies and elected officials. The position of election commissions in the system of bodies of state power and local self-government is defined by law only in general terms. Only the Central Election Commission of the Russian Federation and the election commissions of the subjects of the Federation are defined by it as state (national) bodies. The rest are assigned to the subjects of the Federation. But, despite the requirement of federal legislation, many subjects still have not defined in their laws the status of territorial election commissions and municipal commissions. And where there is uncertainty, there is always the widest scope for bureaucratic creativity in favor of its creator.
With the centralization of the entire life of the state, the powers, role and positions of all six types of commissions were differentiated and changed, primarily in the direction of the verticalization of the system, and the transfer of the center of gravity to the center. The normative-administrative functions of the CEC were growing, which was steadily turning it into a ministry for elections. The redistribution of powers, primarily oversight ones, was carried out to the detriment of the lower commissions, which increasingly became dependent on the relevant executive authorities. As a result, the legal status of election commissions established by law in general terms is very different from their real status, but at the same time it is completely commensurate with the general state trend of forming a special state mechanism aimed at preventing political competition and retaining power.With the introduction of the term “single system of public authority” and the actual destruction of independent local self-government, the real status of grassroots election commissions will be finally built into this system. With a high degree of probability, the commissions will completely turn into a type (subdivision) of the executive branch in charge of organizing and holding elections.
The transformation took place gradually. Initially, in order to achieve the desired goal, firstly, the procedure for the formation of commissions was adjusted—the possible proportion of state and municipal employees who are in a position dependent on the authorities was increased in their composition. The wording of the article of the Law “On Basic Guarantees…” of 1994 on the personal composition of the members of the CEC has mysteriously changed. In that version (in Article 12) it was said that the members of the CEC “should have a higher legal education or a degree in law.” Now it all sounds much more modest: “Members of the Central Election Commission of the Russian Federation must have a higher education.” And really, why make it so complicated? Whoever needs to will come, explain, help, and arrange. Yes, and problems can arise with boring lawyers on the subject of loyalty and complaisance. After all, the CEC was excellently “led” for the good of the country by atmospheric physicist Vladimir Churov, and now process engineer Ella Pamfilova is no less successfully coping with the task.
Secondly, the commissions themselves were entrusted with the execution of certain state powers to control political parties, powers inherent in the bodies of justice. Here is an example: the simplification of the procedure for registering political parties after the decision of the ECtHR in the Republican Party case led not only to a multiple increase in their number, but also to problems in the process of ensuring equal representation of parties in the composition of election commissions. According to the CEC of Russia, 77 political parties were registered in the Russian Federation in 2015, while the mechanism for ensuring the representation of parties in the composition of election commissions was formulated at a time when the number of parties was an order of magnitude lower. The requirement to observe equal representation of parties in the composition of election commissions is enshrined in the resolution of the CEC of Russia only in relation to precinct election commissions. As a result, during the formation of territorial commissions in 2015, out of 12,654 candidates from 65 parties received, 11,278 members from 62 parties were appointed to the commissions.42
Finally, the oversight powers of the commissions within the framework of the election campaign and the rights of its individual members were limited. Now, for example, commissions are not required to consider the dissenting opinions of members when making decisions. In fact, the commissions have become “hostages” of the administratively dependent part of their composition and representatives of pro-government parties that form a confident majority. The logical result was the direct management of the commissions by the executive authorities.
Contrary to the law, the executive bodies often directly exercise the powers vested in the commissions. For example, in accordance with the law, it is the election commission that “ensures that voters are informed about the timing and procedure for the implementation of electoral actions, the course of the election campaign” (para. 16, article 26 of the Law on “On Elections of Deputies…”). But at the by-elections of the State Duma deputy for the 204th constituency, by order of the prefect of the Southern Administrative District of Moscow, the Plan for Information Support of the Elections was adopted and implemented, for the implementation of which financial resources were allocated from the prefecture. At the same time, the prefecture did not even notify the commission of the adoption of such a plan and the allocation of funds.
One of the main forms of influence of the executive power on election commissions was the creation of so-called work groups under the commissions. In fact, these work groups arbitrarily perform functions which are in the jurisdiction of the commissions, organize instruction for members of lower commissions, observe at the polling stations, and take part in summing up the results of the territorial commissions. Work groups consist mainly of employees of executive authorities. Representatives of the work groups attend the meetings of the commission and participate in its decision-making.
And what types of work groups were not “invented” in the field! On the receipt of documents, on information disputes, on the consideration of citizens’ appeals, on control over the GAS (automated system) “Vybory,” on the organization of training for members of election commissions, and on the collection and systematization of information on the amount and other conditions of payment for the production of printed campaigning materials submitted by organizations, individual entrepreneurs performing work (providing services) for the production of printed campaign materials… There are even groups called KRS (control-review service), groups for ensuring the control and realization of voting groups of disabled citizens, and groups for the destruction of documents containing personal data and other confidential information.
And then such messages appear in the media, for example: “The work group of the Yekaterinburg election commission recommended that the initiative group be denied registration of a referendum on the construction site of St. Catherine’s Church.”43 Or these: “A meeting of the work group of the electoral committee of the Novgorod region was held, at which recommendations were made on the candidates for members of the electoral committee and chairmen of the territorial election commissions (TECs).” That is, not commissions, but their work groups, consisting of officials, decide all the issues of electoral law in our country. Doesn’t it remind you of anything? Or have they already forgotten how the “Soviet way of doing things” turned into an “executive committee” way?
Moreover, there are unique theoretical justifications for such a practice. It turns out that “the legal nature of the working group for the acceptance and verification of documents of the election commission is natural law, arising from the natural law Doctrine of Necessity. The absence of de facto competence of the working group to make this or that decision does not affect the competence of the decisions of the election commission.”44 A new word in science—the natural-legal nature of the status of a self-proclaimed body. Really!
But it seems that it could not be otherwise. “When developing a democratic society, we are faced with a “vicious circle”, which includes the “problem of electoral bodies”: the legitimation of democratic power through free, fair and genuine elections can only be carried out by electoral bodies independent of the authorities, and on the other hand, independent electoral bodies can be created in the presence of democracy and civil society.45 And so long as the goals and objectives of the state are the seizure and retention of power, we will tread in this vicious circle.
Taken together, the application of all the described methods led to a powerful cumulative effect, expressed in the creation by the state of favorable conditions for multiple violations of electoral legislation and falsification of voting results in favor of pro-government candidates. The number of violations and falsifications is consistently growing. According to the calculations of mathematical statistician Sergei Shpilkin, in 2007 the number of “anomalous” votes for United Russia was 13.8 million; in 2008, 14.8 million; in 2011, 15.3 million; and in 2012, 11.0 million. In the 2016 elections, the same methodology gave 12.1 million “anomalous” votes. If we exclude “anomalous” votes, then the result of “United Russia” would be equal to 40.5%.
Another mathematician, Alexander Borgens, after analyzing polling stations across Russia in the 2021 parliamentary elections, came to the conclusion that 14 million “anomalous” votes were cast for United Russia. Where votes were not distributed suspiciously, United Russia got 36.85% of the vote. Officially, throughout Russia, the CEC counted United Russia at 49.82% of the vote.46Shpilkin’s calculations supplement Borgens’ conclusions: with an honest count of votes, United Russia in the 2021 elections should have received a third less, and the Communist Party almost three times more, and these two factions in the Duma could be comparable in size. In addition, more than half of all the votes of the “party of power” are anomalous, that is, most likely falsified. The median level of anomaly-free support for winners in single-member districts (nearly 90% of them from United Russia) is 33%, i.e., similar to the level of support for the ruling party under the proportional system.47
Experts say that we are witnessing a change in the former electoral position, in which a certain “volume” of falsifications was perceived as the norm. There have always been regions like Chechnya, Dagestan, and the Kemerovo region, where the results were made up, but today we are experiencing a moment when the technology of rewriting protocols has spread throughout the country—and this is already a disaster for whatever remained of the trust in the electoral system.
Over the past 20 years, the Central Election Commission (CEC) has never slowed down the publication of preliminary results: usually by three in the morning more than half of the ballots are processed and the picture expected by morning is more or less clear. This time, only 35% of the processed ballots were provided with data by the specified time. Talk about the fact that there are many protocols, parties, difficulty in counting—this is all just nonsense. Many times we have simultaneously held elections for governors, municipal and regional assemblies, and they always coped, but now for some reason they have stopped. In parallel, an even more scandalous story is unfolding with electronic voting, to summarize and provide the results of which is a matter of a few minutes.
“There has been an obvious decrease in the level of publicity, openness and transparency of the electoral system,” stated the Golos movement (recognized as a foreign agent), the only independent network of observers working in the elections. Its representatives documented almost 3.8 thousand violations, most of them recorded on photos and videos.
Among such violations are mass ballot stuffing; multiple voting by the same people; possible bribery of voters; ballots with pre-signed signatures or marks for “United Russia”; distribution of passports to residents of Donetsk and Lugansk right on the voting day; lack of control over the inviolability of ballots between voting days; involvement of state employees in “observation”; manipulations of commissions’ documents, intimidation of observers, etc. “Golos (recognized as a foreign agent) has not encountered so many reports of opposition to observers and members of commissions for at least five years, not to mention the facts of the use of violence and threats,” the Golos movement said. For the first time in many years, OSCE observers refused to work in elections in Russia due to restrictions and unacceptable requirements of the Russian authorities.48